Board Restores Longstanding Standard for Employee Discipline in Advance of a First Contract

WASHINGTON, DC – The National Labor Relations Board has overruled a 2016 decision that changed an employer’s duty to bargain over discipline with a newly certified union prior to reaching a first collective-bargaining agreement.  In a decision released today in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board reinstates 80 years of precedent that employers have no statutory obligation to bargain before imposing discretionary discipline that is materially consistent with the employer’s established policy or practice. 

The Board’s decision overturns Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016), which imposed a new obligation on employers upon commencement of a collective-bargaining relationship.  Total Security Management required an employer, with limited exceptions, to provide a union with notice and opportunity to bargain about discretionary elements of an existing disciplinary policy before imposing “serious discipline,” such as suspension, demotion or discharge.  The Board’s decision today in 800 River Road explains how the pre-discipline bargaining obligation created in 2016 conflicted with prior Supreme Court and Board precedent, misconstrued the Supreme Court’s unilateral-change doctrine with respect to what constitutes a material change in working conditions, and imposed a complicated and burdensome bargaining scheme that was irreconcilable with the general body of law governing statutory bargaining practices. 

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the opinion.

The decision can be found here. 

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees, employers, and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.